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Criminal Miscellaneous No. 1292-B of 1986, decided on 23rd September, 1986.

---S. 497--Penal Code (XLV of 1860), S.302--Bail, grant of Grave and sudden provocation--Accused under 16 years of age Occurrence taking place in house of accused--Accused killing his step-mother and another--Both deceased persons found maintaining illicit relations and committing sexual intercourse at time of occurrence-- Vaginal swabs and clothes of both deceased found stained with semen and blood--Held, mere tender age would not entitle accused to grant of bail but prima facie accused having acted under grave and sudden provocation, hi:, case would not be covered by prohibitory clause of 5.497, Cr.P.C. Bail allowed in circumstances.

Muhammad Sadiq v. Muhammad Rafiq and others 1982 S C M R 301 and George alias Kaka v. The State 1986 P Cr. L J 1086 ref.

Abdul Rahman Tayyib for Petitioners.

Muhammad Aslam for the State.

Syed Saeed Humayun for the Complainant.

Date of hearing: 23rd September, 1986.

Muhammad Aslam and his brother Muhammad Khalid, petitioners herein, have been arrested for having committed double murder of their step-mother Mst. Maqsood Bibi and one Dilshad Ahmad on 20-6-1986. As their application for the grant of bail was rejected by Additional Sessions Judge, Bahawalpur, therefore, they have approached this Court for the same relief.

2. Nazir Ahmad, brother of Dilshad Ahmad (deceased), reported at Police Station Musafarkhana, district Bahawalpur, that at 12 noon he alongwith his brother Dilshad Ahmad (deceased) was busy despatching cards for Qulkhawani of the daughter of Dilshad Ahmad when Muhammad Khalid; petitioner (resident of Khanpur Nauranga at 2 miles from their place) came there and told Dilshad Ahmad that he was wanted by his brother Muhammad Aslam (petitioner) and went away, After little while Dilshad Ahmad (deceased) left for Khanpur Nauranga in the company of the complainant, his nephew Arshad and Imam Bakhsh Channer reaching there at 1-30 p.m. Both Muhammad Aslam and Muhammad Khalid, petitioners, met them on a hotel of the town and served them light drinks, Muhammad Aslam, petitioner, then took Dilshad Ahmad to his house for discussing certain matters leaving the complainant and other companions at the hotel. Shortly thereafter they heard alarm and also reports of the gun fire. They ran to the spot and saw Muhammad Khalid armed with stick and Aslam with a revolver. Within their view Muhammad Aslam fired shots at his step-mother Mst. Maqsood Bibi and also at Dilshad Ahmad (deceased) while Muhammad Khalid (petitioner) dealt them stick below. As the ammunition of revolver exhausted Muhammad Aslam then picked up his gun and fired at Dilshad Ahmad and Mst. Maqsood Bibi while they were lying on the ground. Then they went up their roof raising Lalkaras and firing in the air. Both Dilshad Ahmad and Mst. Maqsood Bibi succumbed to the injuries on the spot. After registering the case the police seized dead bodies from house of the petitioners and got them post-mortemed. The doctor observed 14 injuries on the person of Dilshad Ahmad. Of them four were gunshot wounds and the rest caused with blunt weapon. 18 injuries were found on the person of Mst. Maqsood Bibi (deceased), out of which 11 were caused with blunt weapon and 7 with fire-arm. The vaginal swabs of Mst. Maqsood Bibi and clothes of both Mst. Maqsood Bibi and Dilshad Ahmad (deceased) were found to be stained with blood and semen. A stick, gun and revolver allegedly used for killing the deceased were recovered from Muhammad Aslam, petitioner. It may be stated that the A. S. P. who investigated the case has held that the two deceased were maintaining illicit connections and at the time of occurrence they were committed sexual intercourse but he challaned both the petitioners under section 302/34, P.P.C.

3. Learned counsel appearing on behalf of the petitioners at the outset withdrew this petition to the extent of Muhammad Aslam, petitioner. Consequently, this petition to the extent of Muhammad Aslam is dismissed as withdrawn. As for Muhammad Khalid, petitioner, learned counsel submitted that he was not present at the spot; that he is less than 16 years of age as according to the birth entry he was born on 29-12-1970: that no weapon of offence has been recovered from him; that even if it is admitted that he participated in the occurrence then the facts and circumstances of the case, e.g., Mst. Maqsood Bibi is step-mother of the petitioner, both the deceased had illicit connections, they were found together and killed in the house of the petitioner, clothes of both the deceased as well semen etc. indicate that the petitioner had acted under grave and sudden provocation and as such he is entitled to the grant of bail as in similar cases the accused are generally convicted under section 304 Part-I, P.P.C. and awarded sentence between 3 to 5 years. Reliance is placed on number of authorities including the case of Muhammad Sadiq v. Muhammad Rafiq and others 1982 S C M R 301 and George alias Kaka v. The State 1986 P Cr. L J 1086. On the contrary, learned State counsel assisted by learned counsel for the complainant have vehemently opposed this petition contending that whether or not Muhammad Khalid, petitioner acted under grave and sudden provocation is a matter to be decided at the trial and that the mere fact that the petitioner is less than 16 years old is not enough to entitle him to the grant of concession of bail. He has relied on Sher Muhammad v. State 1983 P Cr. L J 2019, Master Mukarram Khan v. State 1985 P Cr. L J 20, Tariq Mahmood v. State 1985 P Cr. L J 484 and Shaman alias Ghulam Rasool and another v. The State 1985 P Cr. L J 583.

4. I have carefully considered facts and circumstances of the case in the light of contentions of learned counsel for the parties and the case-law cited at the bar. It is true that mere tender age of an accused does not entitle him to the grant of bail but in the case in hand Muhammad Khalid, petitioner, besides being less than 16 years of age prima facie seems to have acted under grave and sudden provocation and besides his step-mother had killed one Dilshad Ahmad, both of whom according to investigation maintained illicit relations and were busy committing sexual intercourse at the time of occurrence in the house of the petitioner. In the circumstances, Muhammad Khalid petitioner's case appears to be not covered by the prohibitory clause of section 497, Cr.P.C., therefore, I would direct release of Muhammad Khalid, petitioner on bail subject to his furnishing bail-bonds in the sum of Rupees twenty-five thousand (Rs. 25,000 only) with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Bahawalpur.

S.A/741/L Bail allowed.

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